Appeal, No. 173, March T., 1950, from judgment and sentence of Court of Oyer and Terminer of Allegheny County, Nov. Sessions, 1949, No. 112, in case of Commonwealth of Pennsylvania v. Cleveland Thompson. Judgment and sentence affirmed; reargument refused April 9, 1951.
Louis C. Glasso and Zeno Fritz, for appellant.
Samuel Strauss, Assistant District Attorney, with him William S. Rahauser, District Attorney, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is an appeal by the defendant from a conviction of murder in the first degree with death penalty and sentence imposed thereon.
Sometime between 7 and 8 p.m. on September 13, 1949, the defendant entered a drinking place at number 20 Townsend Street, Pittsburgh, known as the Barbary Coast Club. With a 45 calibre Colt revolver he shot Aaron Daniels through the left arm. Daniels had been talking to the bartender, Russell Wallace, and was turning from the bar to leave when he was shot. There was testimony that before the shot was fired the defendant said, "This is a stick-up, don't nobody move." The bartender remonstrated with the defendant and then said, "Don't kill me, if you want the money take the money. Don't kill me." There was further testimony that the bartender raised his hands in the air and that the defendant after reaching in the
bartender's pocket, backed him against the wall and shot him through the abdomen, killing him instantly. There was testimony also that then the defendant went behind the bar to the cash register. He then backed out of the door saying, "Nobody move, if you do, I will kill you."
There was thus ample evidence (testimony by five eye witnesses) to justify the verdict of the jury. On this appeal the defendant's present counsel complains that the defendant was deprived of a fair, impartial trial, because his court-appointed counsel did not sufficiently prepare for the trial and was indifferent to the defendant's rights; that by his conduct during the trial he caused the District Attorney and the court to make highly prejudicial remarks.
The court-appointed counsel, whose conduct is now assailed, was virtually the defendant's own choice, as appears from the supplemental opinion of the court in that there it is stated that originally Alvin Leith, Esq., a former Assistant District Attorney, had been appointed to represent the defendant by Judge McNAUGHER of Allegheny County. The defendant, however, refused to accept Mr. Leith as his counsel and wrote to Judge WEISS, then presiding in the Criminal Court, asking for the appointment of Adam Shaffer, Esq., instead. Judge WEISS responded by informing the defendant that he must accept the original appointment of Mr. Leith, whereupon defendant again wrote to Judge WEISS that he would not permit anyone but Adam Shaffer to represent him. Thereafter the defendant was brought before Judge WEISS in open court and informed that Mr. Leith was an able attorney and would fully protect the defendant's constitutional right and defend him to the uttermost, whereupon the defendant replied, "I want Adam Shaffer and will not permit anyone else to represent me."
Judge WEISS out of an abundance of caution and with a commendable desire to see that this defendant, who already had a bad criminal record and who now stood indicted for a capital offense should not be tried without counsel because of his own obstinacy, complied with the defendant's demand and appointed Adam Shaffer, Esq., defendant's counsel.
The constitutional right of the accused to be represented by counsel gives him the right to choose, at his own cost and expense, any lawyer that he may desire. When, however, he is unable to do so or is destitute or without means to employ counsel of his own choosing, the court will appoint counsel for him whose statutory compensation and personal expenses are payable by the county. The custom of the court to assign counsel in capital cases is an ancient one and was provided for by the law of this State long before the adoption of its present Constitution or of the 14th Amendment to the Federal Constitution: See Act of May 31, 1718, 1 Sm. L. 105, Section 4, 19 P.S. 783; and see the late Chief Justice MAXEY'S opinion in Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, at page 45, 24 A.2d 1, and footnotes thereto. In those early days it was deemed a proud service of the bar to accept such assignments as counsel from the court without compensation. It was not until 1907 that compensation and certain expenses were provided for: Act of March 22, 1907, P.L. 31, 19 P.S. 784. The amount of compensation then fixed has been substantially increased by the more recent Act of April 6, 1949, P.L. 406, 19 P.S. 784 (pocket part). We might well end discussion of this complaint here and dispose of it on the ground that the defendant made his choice and he must abide by it.
There is nothing in the record to show that the defendant's counsel did not ...